EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.13.18

CAFC is Under Attack by the Patent Microcosm, Whose Scrutiny is Starting to Resemble PTAB-Bashing

Posted in America, Courtroom, Law, Patents at 8:46 am by Dr. Roy Schestowitz

The Patent Trial and Appeal Board (PTAB) is defended by the Supreme Court (Oil States decision), but will patent extremists manage to scandalise and oust judges in another branch?

Watchtroll

Summary: The Court of Appeals for the Federal Circuit (CAFC) is attacked by patent maximalists whenever it suits them, is occasionally being misrepresented by the patent microcosm and is generally coming under intense scrutiny by the perishing ‘industry’ of patent parasites and trolls

THE Court of Appeals for the Federal Circuit (CAFC) is the basis/substance of Section 101 caselaw, which the USPTO follows. CAFC, in turn, adopts decisions other than its own, notably those of the Supreme Court, e.g. Alice and Oil States. As we shall show tomorrow, the USPTO is altering a few things in its guidelines, based on CAFC and the Supreme Court; it’s nothing radical, but patent maximalists do try to make it sounds profound and revolutionary. They hope to affect the outcome that way.

The Federal Circuit Bar Association (FCBA) is a group of patent maximalists. As per this promotion from earlier today, there’s a session coming later this month:

The Federal Circuit Bar Association (FCBA) will be offering a webcast entitled “Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the Federal Circuit?” on May 22, 2018 from 3:00 pm to 4:30 pm (EST).

FCBA being FCBA, it will be speaking for patent maximalists rather than actual patent judges from CAFC. This is expected. We expect nothing else.

In this age of Trump/Trumpism we’re seeing many attacks on judges (like their President). The latest attacks on CAFC — not just on PTAB — come from cowboy hats-donning self-acclaimed "inventors" (who used terms like “draining the swamp” in relation to USPTO Director Michelle Lee). They spewed this out at Watchtroll 5 days ago. So the site has just attacked CAFC (a high court) yet again. We’re sure that the judges at CAFC will be very impressed. This only further alienates them. Watchtroll habitually calls for firing or resignation of judges (CAFC judges included) if they 'dare' say something that patent maximalists do not wish to hear. It’s mob mentality. Theodore Chiacchio does the same (4 days ago), albeit more politely. Writing about the decisions of CAFC is OK, but bashing the decisions, the courts and even individual judges is not honourable. It’s not illegal, but it’s disrespectful and it paints these attorneys/pundits as people who disregard the law except when a decision suits them.

So putting aside these nasty attacks, let’s look at what CAFC actually did do. We don’t wish to feed/entertain insults or words about them.

First of all, patent lawyers engage in misconduct again. Referred to as “unclean hands”, this was covered by Watchtroll and others before it [1, 2]. Ashley M. Winkler (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote that “CAFC Affirms District Court Decision Finding Unclean Hands In Gilead V. Merck” and here’s the substance of the argument:

In Gilead Sciences, Inc. v. Merck & Co. Inc., Nos. 16-2302, 16-2615 (Fed. Cir. Apr. 25, 2018), the CAFC affirmed the district court’s finding that misconduct attributable to Merck barred it from asserting two patents against Gilead under the unclean hands doctrine. This appeal arose from an action relating to treatments for Hepatitis C, and more particularly Gilead’s treatments Solvadi® and Harvoni®, which use the compound sofosbuvir. Further discussion of the decision can be found on Finnegan’s Federal Circuit IP Blog.

Another CAFC decision was covered by Charles R. Macedo and Jung Hahm, who oddly enough chose Watchtroll as a platform:

The decision on appeal turned on the construction of a term of art, “non-exhaustive search,” in the field of database search algorithms. Below, the Board’s construction was supported by the specification and the Board’s factual findings—based on objective evidence and credibility determinations—on what “non-exhaustive search” means in the field. Applying its construction, the Board confirmed the patentability of most of the claims challenged in the IPRs. On appeal, the Federal Circuit panel reversed the Board’s construction, vacated in part and remanded those IPR decisions with respect to claims using this term of art. Google LLC v. Network-1 Techs., Inc., No. 16-2509, slip op. (Fed. Cir. Mar. 26, 2018) (nonprecedential) (“Opinion”).

Algorithms are abstract as per Section 101 and should thus be unworthy of patents; any patents on these (even if they call the said database/s “blockchain” or whatever) ought to be voided by the court. In this particular case CAFC seems to be even tougher than PTAB. It makes it quite interesting.

Another blog of patent maximalists spoke about the rare situation “[w]hen two decisions are released simultaneously [and] how [one can] treat the precedential value of the cases relative to one another” (like a chronology rule of thumb). The Supreme Court often releases decisions in tandem and it recently released two decisions — both pertaining to PTAB — simultaneously. To quote this post, which actually focuses on CAFC:

The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision.

Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.

If Justices’ decisions (such as Oil States, which we shall cover later) become precedents “immediately upon release,” then it must spell trouble to a lot of cases against PTAB, including the publicity stunt which is class action (also to be covered later and separately).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. USPTO and EPO Faking Growth by Granting Patents on Everything in Nature, But Campaigners Strike Back

    The patent microcosm is eating the world; everything under the Sun must be patented, they insist, even life itself (so they can 'pirate' the Commons and then charge us a tax for 'access' or 'license' to it)



  2. IBM Happy That Patent Quality at EPO Collapsed and It's Easy to Get Software Patents

    The EPO keeps granting illegal European Patents and the media almost never mentions this illegality because it's in too amicable a relationship (typically financial) with the EPO



  3. The Linux Foundation's Staff Uses Windows and Microsoft. Now the Foundation Outsources the Coding and Hosting, Too (to Microsoft of Course).

    The disturbing turns of the self-described "Linux" Foundation, which seems to be promoting proprietary software and even Microsoft rather than Linux and Free/Open Source software while the role or capacity of Torvalds is being gradually diminished



  4. Links 25/6/2019: Raspberry Pi 4, Ubuntu's Change of Mind, Wayland’s Weston 6.0.1

    Links for the day



  5. Patent Extremism: Stacking the Panels, the Surveys, the Hearings, the Debates

    Projection tactics would have the public believe that those who oppose corruption are simply radicals; patent polarity has come to the point where if one isn't a "true believer" in blackmail (patent trolls) or opposes bribery, then one is simply a "fringe" and akin to terrorists



  6. Links 24/6/2019: Linux 5.2 RC6, Skrooge 2.20.0, ZFS vs. OpenZFS

    Links for the day



  7. The EPO Needs a President Who Obeys the Law, Not One Who Obeys Battistelli

    Succession based on nepotism at Europe's second-largest institution served to shown how inherently broken things had become and why cover-up of injustices is nowadays paramount (not fixing the flaws/ills but merely perpetuating them)



  8. With Water (Treatment) Already Patented It Won't Take Long for Patents (and Patent Royalties) on Air

    A 'paper economy' is what Europe turns into if the current trajectory is followed (led by lawyers, not producers)



  9. Bill Gates Said He Was on a “Jihad” Against GNU/Linux, But GNU/Linux Users/Developers Engaged in Self-Defense Are Foul-Mouthed 'Microsoft Haters'?

    Microsoft, which routinely commits very serious crimes, tries to come across as some sort of philanthropy whereas those who share their work with the public (for greater good) are described as erratic, rude and unworthy of respect from corporations (outcasts basically, deprived of income source)



  10. What Patents the EPO Has Just Awarded (With a Special Reward), Not Just Granted

    The EPO's practice of elevating some patents over the other patents (European Patents) is perhaps more of a societal liability than the EPO cares to realise



  11. Required Reading: Mental State of Team Battistelli/Campinos

    On the heels of yesterday's article about Team Battistelli/Campinos, here are some recommended/required papers on the problem which likely plagues the Office



  12. Links 23/6/2019: Wine 4.11, FreeBSD 11.3 RC2

    Links for the day



  13. Microsoft Apparently Did a Patrick Durusau on Wim Coekaerts to Broaden Its Control Over GNU/Linux

    Microsoft tactics for defection and takeover of the competition (without coming across as hostile) aren't new tactics; internal documents from Microsoft explain how to achieve this



  14. EPO Directors Would be Wise to Rebel Against Team Campinos While They Still Have the Job

    As the EPO continues its bold journey towards dictatorship (where presidencies are passed between friends and ‘circles’ are former colleagues or close confidants) Techrights urges those who have power to speak out — e.g. EPO judges and Directors — to do something before it’s too late



  15. American Front Group Open Invention Network (Riding the Linux Brand) is a Proponent of Software Patents in Europe

    The impact of American multinationals in Europe is difficult to deny; in fact, we're observing the same old lobbying/lobbies still working hard albeit more covertly (typically using front groups)



  16. Say 'Hey Hi' to Software Patents

    Using the “AI” (“HEY HI”) hype the ‘community’ of patent maximalists hopes that every little (and possibly very old) algorithm will suddenly sound amazing and innovative — to the point where it becomes unthinkable to deny a patent monopoly on it



  17. A Personal Note From Ted MacReilly (How Microsoft Works Against GNU/Linux)

    A tongue-in-cheek write-up highlighting the ways Microsoft insiders think and how they strategise against GNU/Linux and Free/libre software



  18. The Linux Foundation's New Vice Chair, Wim Coekaerts, Worked for Microsoft

    The Linux Foundation is boosting the Microsoft boosters and calls that "community"



  19. Links 21/6/2019: GNOME 3.33.3, 32-Bit Support Further Neglected, DragonFlyBSD 5.6.1 Released

    Links for the day



  20. Leaked: Harassment of EPO Directors by Team Campinos

    “New BIT organisation and staff changes,” a novel kind of newspeak, means that Directors are being severely punished without due process at all (“hidden disciplinary measure without disciplinary proceedings”)



  21. Patent Professionals in Europe Have Devolved Into a Marketing Industry

    Lies, buzzwords and hype waves is all that the patent bubble in Europe boils down to these days; loads of bogus patents get granted only for European judges to smack these down (if one can afford the court battle)



  22. Almost Six Months After Iancu Said He Would Make Software Patents Great Again Nothing Has Actually Changed

    We're just a fortnight away from the ludicrous plan of Iancu celebrating 6 months (without accomplishing anything)



  23. Links 20/6/2019: Kubernetes 1.15, Alpine 3.10.0 and Librem 5 June Software Update

    Links for the day



  24. Ignore the EPO's Dumb Festival and Focus on the Abuses Against the Workforce and Its Quality of Work

    Don’t lose sight of the appalling behaviour of the management of the EPO; the last thing it wants is press coverage about its gross abuses and corruption — an aspect it spent literally millions of euros to bury (gaming the news cycle)



  25. Microsoft Attempting to Destroy the Careers of Its Critics, Including Free Software Proponents

    Microsoft isn't changing and has not changed; the tactics described above are still being used, even by its "Open Source" (or "Open at Microsoft") people, who did this to me



  26. Links 19/6/2019: Linux Mint Vs Vista 10, Qt 5.13 Released

    Links for the day



  27. The Linux Foundation's Business Model

    The Linux Foundation's plan, illustrated



  28. Links 18/6/2019: i386 Abandoned by Canonical and a New osquery 'Community'

    Links for the day



  29. Indifference or Even Hostility Towards Patent Quality Results in Grave Injustice

    The patent extravaganza in Europe harms small businesses the most (they complain about it), but administrative staff at patent offices only cares about the views of prolific applicants rather than the interests of citizens in respective countries



  30. Links 18/6/2019: CentOS 8 Coming Soon, DragonFly BSD 5.6 Released

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts